Criminal charge in Big Dig case to be dropped

It appears that the one company indicted in the Big Dig tunnel-collapse case will not face criminal charges.

Attorney General Martha Coakley has announced that she plans to defer prosecution on a 2007 manslaughter indictment against Powers Fasteners Inc., brought after Milena Del Valle was killed in July 2006.

“What it means is that the indictment will be dismissed,” said Max D. Stern of Boston, who represented Powers. “Under the terms of the agreement, the dismissal will take place sometime within the next 120 days, as soon as Powers completes certain tasks that it has agreed to perform.”

Once that occurs, Stern said, the indictment could only be reinstated if Powers were to violate the terms of the corporate compliance agreement in a serious way. While deferred prosecutions are rare in state court, Stern said it is a mechanism used on a regular basis in federal court.

What is unusual about this situation, Stern said, is that the agreement to defer prosecution was made post-indictment.

“As a practical matter, it means the end of this prosecution,” he said.

Stern confirmed that, while settlement negotiations had been occurring over the past few months, the agreement was not finalized until last night.

“It closes this chapter,” he sad. “It enables this family and this company of over 240 employees to get back to focusing on business, which is very important for them to do, especially given these hard times.”

The decision to forego the criminal prosecution, which many legal experts agreed would have been a difficult case to prove, was based in part on the company’s willingness to pay $16 million to settle the civil case.

The indictment had alleged that Powers failed to warn contractors of the dangers of using fast-drying epoxy to secure ceiling bolts in the tunnel.

In a written statement, Coakley said that by agreeing to comply with the terms of the agreement, Powers was taking important steps to ensure that a similar incident would never happen again.

“This is a far more meaningful outcome than a small monetary fine,” she said. “In addition, the $16 million civil payment serves as a deterrent, not only for Powers, but for other companies who work on public projects of this magnitude.”

As part of the deal, the company agreed to not work on any state or local government projects until 2012 and to recall the epoxy that was used in the ceiling collapse.

In the event of a Powers breach, the indictment may be reinstated within three years. Had the company been convicted, it faced a maximum fine of $1,000.

Powers president Jeff Powers praised Coakley for her willingness to dismiss the indictment.

“Unlike most of the other companies involved in the Big Dig, Powers Fasteners is a very small company,” he said in a written statement. “The indictment alone has put enormous stress on our business and our people – in an economic environment posing its own special challenges. We are very happy to bring to a close this difficult chapter for all concerned.”